How To Identify A Self Funded Plan

In a self-funded plan, the employer assumes the financial risk for providing health care benefits to the plan participants. Though the employer will typically contract with a third party administrator to assist in the administration of the plan, the employer bears the risk of plan solvency.

So the question remains – how does an outsider to plan administration ascertain the self-funded status of a plan? For example, if an attorney representing a personal injury plaintiff receives a letter from a representative of the plan, how does the attorney know if the plan is self-funded or not?

The consequences may be extremely significant since most States limit, and in some cases, prohibit in some fashion health plan subrogation. Yet, these State laws are preempted if the plan is a self-funded ERISA plan. Thus, the funding status of the plan is very significant.

Form 5500 Filings

Often offered as a solution, inquiring as to the filing of Form 5500′s is actually just a starting point for determining whether a plan is a self-funded ERISA plan.

The plan participant (perhaps not the participant’s
attorney, according to some cases) is entitled to request the most
recent Form 5500 under 29 U.S.C. 1024(b)(4). [For more information on this, see
my ERISA Plan Information Requests Series]

While you wait for the plan administrator to send it (and
you do want to ask the “plan administrator” (not the claims administrator), you
can check the DOL Form 5500 database.

For more information on plan reporting and disclosurerequirements, the DOL has published a good resource in the form of a booklet.

The Form 5500 will have a section, Box
9, that indicates the plan funding arrangement. If the form says “general
assets of the employer”, that suggests a self-funded plan. If it says
“insurance”, that suggests a fully insured plan. (Fully insured plans may still
be ERISA plans, but the preemptive force of ERISA Section 514 only applies with
its full force and effect in the case of self-funded ERISA plans.)

But evaluation of the Form 5500 is not conclusive.

Understanding what is a governmental entity for ERISA purposes is a topic beyond the scope of this article/ For now, assume that any entity that purports to serve the public in some fashion and appears to have some element of government control should be evaluated for exemption from ERISA as a governmental entity. On the other hand, just because such an entity files a Form 5500 does not mean that the plan is necessarily an ERISA plan.

Further, be aware that it is not unusual for form preparers
to indicate “insurance” as a source of administration when the plan is actually
self-funded. These mistakes do happen and are not as uncommon as they should
be.

Also, as noted in the “Who Must File” section of the Form5500 Filing Instructions, certain plans with under 100 participants as of the beginning of the plan year and that are unfunded, fully insured, or a combination of insured and unfunded may not have filed a Form 5500. Cf., DOL Technical Release 92-01, 57 Fed. Reg.23272 (June 2, 1992) and 58 Fed. Reg. 45359 (August 27, 1993). Whether this exclusion applies or not is for expert evaluation, but for our purposes here,it just adds another reason that the Form 5500 filing or not cannot be viewed as the final answer in evaluation of ERISA self-funded plan status.

Statements in Plan Document and SPD

What the document says is not the final word. Insurance companies rank first among plagiarists. Summary plan descriptions are frequently copied from the forms used by the prior administrator. So, what is in the document is useful, in a forensic sense, but not determinative in a legal sense.

Nonetheless, plan documents should have a section thatrefers to the type of plan administration. That section will typically state “contract administration” in the case of a self-funded plan, and “insurance” inthe case of a full insured plan.

Evaluation of the Parties Involved

Experience with the parties involved in the plan administration constitutes a very helpful criterion for those with a background in the self-funded health plan market. One may find some indicators here by checking State licensing information and gathering some information on how the entity is licensed and what policy forms they may have on file with theState insurance department. If claims are paid by a third party administrator (as opposed to an insurance company), and the TPA is licensed as such with the State insurance department, then that is an indication that the plan is self-funded.

Yet, insurance companies can also pay claims for self-funded plans through “administrative only” agreements. Thus, you cannot rely on the fact that an insurance company versus a third party administrator is adjudicating claims. You can, however, evaluate the ASO contract to determine if the employer bears the“insurance risk” for claims under the plan or if the administrator assumes therisk.

Also, one must distinguish self-funded plan arrangements in which the employer obtains stop loss insurance from forms of insurance which may appear very similar. For example, under a “minimum premium” policy, the employer pays a reduced premium to the insurer and assumes the burden of paying off claims up to a certain amount. These policies can again be distinguished from a self-funded plan based upon the allocation of risk. The minimum premium policy bifurcates risk for claims between carrier and plan sponsor based upon the risk retention points. (Cf., Basic Criterion of Self-Funded Plans above.)

Note: Because of the many parties that may be involved inthe administration of a group health plan, it is important to seek information from the plan administrator (as defined), and ensure that the party providing information is authorized to represent the plan in the transaction as opposed to merely one of the service providers, such as the stop loss carrier.

Multiple Employer Welfare Arrangements

Adding another layer of confusion, one must ensure that,
even if a plan that is undeniably self-funded, it does not constitute a MEWA.
If it does, virtually every defense against State law regulation is removed.
Further, a MEWA will often constitute a non-ERISA plan such that it is entitled
to no deference whatsoever by ERISA considerations. In short, if the plan purports to be sponsored
by multiple employers, an association of any kind, including a leasing
organization or a “professional employer organization”, think twice before
conceding ERISA status even if the plan is “self funded”.

Conclusion

The first criterion set forth above is actually the best litmus test for determining whether a plan is an ERISA self-funded plan or not. Evaluation of the form of benefits funding by reference to the Form 5500, the plan documents, the type of entity and the administrative arrangement will support a finding in this regard. In the final analysis, the conclusion will be clear in many cases, but some will present complex questions. This is particularly true in the situation of exempted employers, such as governmental or church plans, and multiple employer arrangements. While the foregoing analysis will not assure a correct result, consideration of the enumerated factors together should provide an accurate assessment in most cases, and where there remains doubt, assistance should be recruited from a colleague more familiar with such issues.